Nov. 17 USA: A Matter of Death The horrific life of Joe Elton Nixon, briefly referenced last week during a narrow procedural hearing before the U.S. Supreme Court, is at the heart of a capital murder case that Eric M. Freedman predicts will be studied in law schools for years to come. Freedman, part of a team of New York attorneys in the cause of winning Nixon a new trial in Florida, is a professor of constitutional law at Hofstra University School of Law. The Nixon case, he said, "illustrates all the elements that typify death penalty cases, and the people who wind up getting sentenced to death. Race, lousy counsel -- all the fundamental problems. "We certainly hope the justices look at it in that context," Freedman said of Florida v. Nixon, 03-931, in which he is joined by 5 pro bono lawyers from Coudert Brothers. "The lower courts," he added, "should be persuaded against going off and killing a guy who's never had his story told." An immediate question before the high court is whether Nixon's trial lawyer in July 1985 was rendered ineffective by conceding guilt without the explicit consent of his client. According to court papers, Tallahassee, Fla., defense attorney Michael Corin took that tack in an unsuccessful effort to win life imprisonment in lieu of death by electrocution. The now 34-year-old defendant -- a mentally retarded black man who grew up as a victim of poverty, incestual rape, sexual humiliation, forced labor in tobacco fields and near-daily beatings at home, on the job, or in juvenile institutions -- was tried in absentia and sent to Florida's death row for lashing a white woman to a tree with car jumper cables and setting her on fire, leaving her to die in a secluded woods while he pawned her rings. The grisly homicide stunned the people and the press of Leon County, Fla., and dominated the final years of Jonathan Lang, a Manhattan real estate attorney who failed in numerous post-conviction proceedings on Nixon's behalf. In December 2002, Lang was suffering brain metastases associated with lung cancer, a disease he contracted despite never having smoked. But Lang rallied himself for victory in the Supreme Court of Florida in the matter of Nixon v. Florida, SC01-2486, which vacated Nixon's conviction and ordered a new trial. Lawyers for the state of Florida appealed to the U.S. Supreme Court. Lang died at age 51 in March. For several years in representing Nixon, however, Lang was aided by Edwin S. Matthews Jr., of counsel at Coudert, along with Coudert partner Edward H. Tillinghast III and associates Damion K.L. Stodola, Shirin Keen and Annie C. Tsai. In fact, a Coudert office -- cluttered with scores of document boxes but still befitting a senior partner -- has long been maintained for the firm's pro bono commitment to the Nixon case, which was further aided by several classes of summer associates. Last week, Tillinghast and Stodola went to Washington, D.C. Tillinghast, who heads Coudert's global financial restructuring and insolvency group and who was once a prosecutor in the Suffolk County District Attorney's Office, argued for Nixon before the U.S. Supreme Court. As a prosecutor, said Tillinghast, "I would have had Joe Nixon examined by competent psychiatric doctors. That should have been put into the equation from a prosecution side, and from a defense side. "But the only exam came during a 45-minute lunch break during his trial," he added. "There was a psychologist in the courthouse for something else. He wasn't trained in the criminal context. The judge asked him to talk to Nixon for awhile." Stodola, a Canadian who opposes capital punishment, jumped at the chance to assist in the Nixon case, in which he said he has worked "hundreds of hours a year" for nearly 3 years. "As a young lawyer working at a large corporate firm, this is a remarkable opportunity, backed up by the dedicated support of partners. It provides soul to a law firm," said Stodola, 31, a graduate of McGill Faculty of Law in Montreal. "I'm grateful to be able to give voice to my belief that the [death penalty] is just wrong." On the narrow issue before the Supreme Court, he and Tillinghast explained, the Nixon case claims violation of the defendant's right to effective counsel under the Sixth Amendment and the due process clause of the 14th Amendment. Nixon's trial lawyer, Corin, could not be located for comment. Attorneys for the state of Florida declined to comment. But the U.S. Justice Department filed an amicus brief in support of Corin and Florida's official determination to execute Nixon. "As a number of courts have held," wrote then-Solicitor General Theodore B. Olson in the amicus brief, "when counsel concedes a defendant's guilt as a 'tactical decision, designed to lead the jury towards leniency ... such a 'tactical retreat' is 'deemed to be effective assistance.'" [U.S. v. Tabares, 951 F.2d 405, 409, and U.S. v. Holman, 314 F.3d 837, 840.] The Justice Department brief noted Corin's closing remarks at trial. "Corin argued that [Nixon] should be spared a sentence of death because he has 'never been' and 'never will be' an 'intact human being,'" the brief stated. "He ended by stating, 'It's rare when we have the opportunity to give or take life. And you have that opportunity to give life. And I'm going to ask you to do that.'" According to court papers, Corin said Nixon gave silent consent to the tactic of pleading guilty. But in an early brief on behalf of Nixon -- a 306-page document filed in 1993 with the Circuit Court for the Second Judicial District of Florida -- Lang recounted the defendant's objection to such a tactic by way of refusing to appear in court under such condition, and his repeated demands for new counsel. "This was an egregious assault on Nixon's rights," said Stodola. "He never affirmatively assented to that [guilty] plea." Without explicit consent, Freedman said, a defense lawyer has no right to interject his own wisdom for the wishes of the client. "A trial should give you a high quality outcome, rather than what's happening in the death penalty system," Freedman added. Contrary to American Bar Association guidelines on capital defense procedure, he said, "As it is now, the trial merely gives us a rough draft, which is then polished through layers of post-conviction review in the hope of eventually achieving what should have been put forward in the first place." Namely, in the case of Nixon, the mitigating circumstances of lifelong physical and emotional abuse should have been brought out at trial, said Freedman, as well as the client's relationship with his older brother, John Nixon. According to Lang's 1993 brief, John Nixon routinely taunted his younger brother by parading him through the streets in girl's clothing, and telling Joe Elton Nixon's friends that he was regularly raped by an uncle and aunt. John Nixon, a paid informant for the Leon County Sheriff's Department, was the principal prosecution witness against his brother at the 1985 trial. Joan E. Bertin, Lang's widow, said her husband headed the civil rights committee of the Association of the Bar of the City of New York when he took on the Nixon case. At the time, she said, the case was "radioactive." For his years of work in the Nixon matter and other death penalty defense work, Lang was given posthumous honor in September by the National Coalition to Abolish the Death Penalty. Of the Nixon case, said Bertin, an attorney and executive director of the National Coalition Against Censorship, Lang "became convinced that there was more than met the eye. It took him a long time to get [Nixon] to come out of his cell. But he built trust over the years. "Joe was paranoid -- with good reason," she said. "In fairness to [Corin], he was asked to an incredibly difficult job in an incredibly hostile setting." Yet now, 19 years after trial, the state of Florida insists that both the prosecution and defense of Nixon was properly conducted, and that the jury's death sentence is appropriate. In last week's Supreme Court hearing, justices issued a barrage of skeptical questions about the position advanced by Nixon's team. "You said his lawyer acted without consent ... but he said nothing," said Justice Ruth Bader Ginsburg in an exchange with Tillinghast, according to the Associated Press. "Where a client doesn't say yes and doesn't say no, mustn't a lawyer do what he thinks is best to do?" Justice Antonin Scalia agreed: "According to the lower courts, [conceding guilt] was a good strategy. I don't know why you want counsel, when a client doesn't answer, to take a course that gets him executed." Stodola suggested a lesson in the exchange. "At this level, you become very divorced from the facts," he said. "The nuances in legal theory is what lawyers have to cling to in order to remain at peace with themselves." And Freedman suggested a high court decision on the matter, which he expects to be handed down early next year, is not the most important detail in the ongoing Nixon case. "If we win in the Supreme Court, there will be a new trial and a real test," he said. With reference to ineffective counsel claims under the Strickland standard, set in 1984 by Strickland v. Washington, 466 U.S. 688, Freedman added, "If we lose, then left on remand is Strickland. Either way, we expect and intend that eventually all of Jon Lang's digging and getting to know the client will come out as the basis of a just outcome." Lang never revealed his mental illness to Nixon. In a recent letter from jail, Nixon said of his lawyer, "When Jon died like a part on me inside died also, he was alot more than my attorney we were best friends and family who cherish our time ... I am familyless." (source: New York Law Journal) ********************* Original Justice----Scalia defends his legal theory Students and residents packed inside Rackham Auditorium yesterday gave thunderous applause while student protestors clamored outside, as U.S. Supreme Court Justice Antonin Scalia delivered a lecture on constitutional interpretation. The famously conservative judge, who has served on the court since 1986, came to give the Law Schools DeRoy lecture, which regularly attracts noteworthy figures in law. Scalias lecture concentrated on his view that the Constitution should be interpreted according to its meaning when it was originally written. "The real fault line in constitutional interpretation nowadays is not between conservatives and liberals. It is the philosophy of originalism, which gives the Constitution the meaning it had when it was adopted," Scalia said to a crowd of more than a thousand people. "This is not some weird new philosophy. It is indeed a minority view now, but it used to be orthodox." The justice expressed distaste for the popular contemporary "living Constitution" which views the Constitution as a document that should be modified over time to meet the changing needs of American people. Scalia said despite public opinion, the originalism system is very flexible. "If you want to change something, you should persuade your fellow citizens and pass a law in your state. The state laws can be changed; Supreme Court rulings cant be changed." Scalia said items not mentioned in the Constitution, such as abortion, should not be ruled on by the court, saying instead that the states should decide on these issues individually. "People shouldn't think that a living Constitution always leads to greater freedom. We can take away rights as well as create them," Scalia said, warning the audience of the dangers of a living Constitution. During the lecture, Scalia was interrupted by a group of protestors who silently carried signs through the auditorium. The audience responded to the protestors with a combination of applause and jeers, and Scalia joked, "Is this an accepted form of free speech? Can I expect another parade after this one?" Erin Schwartz, a graduate student in the School of Social Work, commented on the march through the auditorium. "We came in silently and anonymously, and we brought in signs to demonstrate the injustices of Scalias work in the court system." Scalia continued his lecture and addressed several arguments against originalism, including that figuring out what the founding fathers meant when writing the Constitution is for historians and not lawyers. "Originalism is not perfect, and some cases can be hard to figure out. However, under originalism the most controversial cases are a piece of cake," he said. Scalia cited the death penalty, saying that when the Constitution was written it was the only punishment for felonies, so the death penalty must be constitutional. "Every question is difficult if youre not an originalist. (Originalism) gives you an awful lot of answers," he said. Although Scalia is a vocal opponent of affirmative action and opposed the University in its admissions lawsuit last year, he did not address the issue during his speech. But during a question-and-answer session following the lecture, Scalia was asked how he could oppose race-conscious admissions and consider it acceptable for him to attend Harvard law school. "I did not attend Harvard because I am an Italian-American, I attended because I met the intellectual standards of the school," he said. "Theres a good deal of evidence which has found that it harms people to push them into an academic environment they are not prepared for." Scalia ended his lecture by encouraging the audience to go back to an originalist view of the Constitution by voting for judges who share this ideology. "Otherwise the majority will decide the Constitutions meaning, and thats not what the Constitution is for," he said. Protestors from the Stonewall Democrats, College Democrats and Students for Choice held signs and chanted outside after the lecture. "We think that Scalia has made a lot of decisions that severely limit, or he has said he would like to make decisions, that would severely limit womens choices," said Music School junior Ashwini Hardikar, a board member of Students for Choice. "He has voted to uphold sodomy laws and 'Don't-ask, Don't-tell policies, and to strike down the University of Michigans affirmative action admissions policies. All of these things together and right-wing ideology in general is what brings us here." (source: Michigan Daily) PENNSYLVANIA: Serial killer nurse pleads guilty to six more deaths in Pennsylvania, bringing total to 23 The nurse who admitted killing up to 40 patients in New Jersey and Pennsylvania pleaded guilty Wednesday to 6 murders and 3 attempted murders. Charles Cullen appeared in a Lehigh County courtroom to enter the plea, which was announced last month. With his latest admission, Cullen has now pleaded guilty to giving fatal medication overdoses to 23 people and nonlethal overdoses to five others during his 16-year career. The Lehigh County charges involved 5 people who died at St. Luke's Hospital in Fountain Hill, where Cullen worked between 2000 and 2002, and one at Lehigh Valley Hospital in Salisbury Township, where Cullen worked from 1998 to 2000. Two more St. Luke's patients at the hospital got sick when Cullen gave them a medication overdose, and later died, but prosecutors said their deaths may have been from other causes. At Lehigh Valley Hospital, a patient received an overdose that was not fatal. All of Cullen's victims were seriously ill, but not all were expected to die soon when he delivered his poison, prosecutors said. Additional deaths are still under investigation and Cullen may face further charges in New Jersey. Cullen has claimed to have killed 30 to 40 people. He agreed to help investigators identify his victims in exchange for a promise that they would not seek the death penalty. (source: Associated Press) ********************************************************* Dear Friends and Allies, For the first time in more than five years, the Commonwealth of Pennsylvania will very likely carry out the state-sponsored killing of a human being. We call on all people of conscience to join together to stop the scheduled December 2 execution of George Banks, a man with severe mental illness who has been on death row for nearly two decades. Barring unforeseen intervention by the courts or Gov. Rendell, Banks will be the fourth person to be killed by the state since Pennsylvania reinstated the death penalty. Unlike Keith Zettlemoyer and Leon Moser (both executed in 1995) and Gary Heidnik (executed in 1999), Banks has NOT waived his appeals. Therefore, he would be the first person executed against his will in Pennsylvania in more than 40 years. YOU can help stop this execution, which, if carried out, would be at a minimum an immoral and barbaric act in violation of any civilized standards of human decency. Clearly, the execution of George Banks, now 62 years old, will provide nothing for the citizens of Pennsylvania; his killing will be an empty act of state-sponsored murder and revenge, disguised as justice. Banks' case is yet another example of the deadly problems that infect our state's broken death penalty system. A major grassroots organizing effort has been launched across Pennsylvania - and beyond - to activate citizens to stop the execution. A massive letter-writing campaign to Governor Rendell is under way, demanding that he immediately rescind the death warrant for George Banks. There also will be several days of intensive phone calling to the governor's office - these are scheduled for Tuesday, Nov. 23; Tuesday, Nov. 30 and again on Thursday, Dec. 2 if the execution has not been stayed. Finally, on Dec. 2, coordinated demonstrations will be held throughout Pennsylvania in an assertive display of vocal and visible resistance to the scheduled 7 p.m. execution. Please take a few moments to read about the Banks case (see below). TAKE ACTION to help stop the execution, and encourage family members, friends and colleagues to join you in these efforts. Watch closely for developments in his case and in our campaign to stop the execution. Thank you for your commitment to helping stop the execution of George Banks, and to ending state-sponsored killing in Pennsylvania. Sincerely, Kurt Rosenberg Field Organizer Pennsylvania Abolitionists United Against the Death Penalty ________________________________________________ URGENT ACTION! STOP THE DECEMBER 2 EXECUTION OF GEORGE BANKS! BACKGROUND George Banks has been on death row since 1985, having been convicted of killing 13 people in Wilkes-Barre, Pa., in 1982. Banks, one of four illegitimate children of a bi-racial couple, grew up in an all-white neighborhood in Wilkes-Barre, where he was subjected to racial prejudice from both whites and blacks. White neighbors called him "black trash" and "half breed" and referred to his white mother as "nigger lover," while blacks labeled him "zebra" and called his mother "white trash." Plagued by insecurity, persecution and anger, Banks felt rejected by both whites and blacks, and viewed himself as "a man without a race." His mental health worsened as his persecution complex grew, and he became obsessed with paranoid delusions. He became convinced that a war between the races was imminent. While working as a state prison guard in 1981, he wrote in a journal, "I have the impulse to take the shotgun out on the catwalk [of the watchtower] and kill some inmates." THE BREAKING POINT On the morning of Sept. 25, 1982, Banks lost complete control. Using a military-style automatic rifle he had acquired for the race war he predicted, he killed 13 people. Seven of them were children, including five of his own, and four of them were his girlfriends. There were serious questions about Banks' competency to stand trial. One psychiatrist who examined him called Banks "terminally paranoid," saying he had "lost touch with reality on a great many things." Banks claimed that a white police detective had shot and mutilated his deceased family members, moved the bodies and changed their clothes, and put extra bullets in them. He sought to have the bodies exhumed in order to prove there was a racially motivated conspiracy to fabricate and destroy evidence. Banks' trial degenerated into a tragic farce, as the court allowed Banks and his lawyers to present inconsistent defenses. Banks was sentenced to death according to jury instructions that were later declared unconstitutional. Jury instructions may have prevented the jury from fully considering mitigating evidence for Banks, including evidence of his mental illness. The U.S. Supreme Court, however, ruled in a 5-4 decision last June that a 1988 decision on jury instructions could not be applied retroactively to Banks' case. Since 1984, Banks has been sent to a state prison psychiatric hospital six times and has been prescribed at least 15 different psychotropic medications. He has attempted suicide at least six times and has gone on prolonged hunger strikes/religious fasts, bringing his weight down to nearly 100 pounds (he is 5-11) and requiring that he be force-fed. Banks remains delusional and psychotic. He contends that Jesus Christ is in Washington, D.C., and has written to Jesus in Washington for advice on whether or not to continue fasting. He maintains the delusional belief that "all of my sentences have been vacated [by God] and I am being held here illegally." Banks believes prison guards have tried to poison him, and that television evangelists are sending messages to him. A CALL TO RESISTANCE We call on all concerned citizens to take action TODAY by writing to Governor Rendell and asking him to immediately rescind the death warrant for George Banks based on evidence of Banks' severe mental illness that made him incompetent to stand trial. In addition, the five-person Pennsylvania Board of Pardons, which could hear Banks' case and grant clemency, is required to include a psychologist or psychiatrist. That seat is currently vacant, which raises serious concerns about the fairness of Pennsylvania's clemency process and would likely make it very difficult for Banks to get a fair hearing. Please take a few minutes and write to Governor Rendell today expressing your grave concerns based on these issues. And watch closely for developments in his case and on our campaign to stop the execution. Please pass this information on to family members, friends, colleagues, etc. Write to: Governor Edward G. Rendell 225 Main Capitol Building Harrisburg, PA 17120 Call/fax the Governor's office on Tuesday, Nov. 23; Tuesday, Nov. 30 and Thursday, Dec. 2: Phone: 717-787-2500 Fax: 717-772-8284 Attend a demonstration from 5-7 p.m. on Thursday, Dec. 2 (if the execution has not been stayed): Philadelphia: 200 South Broad Street (near Broad and Walnut). Information: 215-724-6120. Pittsburgh: 300 Liberty Avenue. Information: 412-241-8154. Harrisburg: Governor's Residence, 2nd and Maclay Streets. Information: 717-514-2747. Erie: Location TBA. Information: 814-453-4955, ext. 228. Lehigh Valley: Location TBA. Information: 610-691-8730. CALIFORNIA: Geragos faces complaint over boat An attorney with a penchant for attention-getting litigation has filed a complaint against Scott Peterson's lawyer for apparently parking a replica of his client's fishing boat 2 blocks from the courthouse last week. In a complaint filed Friday with the California Bar Association, attorney John B. Thompson accuses Mark Geragos of trying to "engage in nonverbal communication" with jurors deliberating Peterson's guilt. "I believe (Geragos) violated the bar rules," said Thompson, a Florida attorney who has filed complaints against radio "shock jocks," graphic rap music and violent video games. Under a court-imposed gag order, Geragos is prevented from speaking about any aspect of the Peterson case. The open boat, which contained homemade concrete anchors and a dummy, was set in a parking lot after the trial judge decided not to allow jurors see a videotaped experiment performed by the defense during which the craft apparently filled with water. The tape could have bolstered the defense's argument that it would have been nearly impossible for Peterson to heave his wife overboard, as prosecutors contended, without tipping. Thompson said the boat display was an unethical way to embarrass the judge and attempt to influence the jury. An analyst at the California Bar Association will examine the complaint and then refer it to an attorney to decide whether to pursue an investigation, which could lead to disciplinary action, spokesman E.J. Bernacki said. On Friday, the jury convicted Peterson of murdering his pregnant wife, Laci, and her fetus. The penalty phase is set to start Monday to determine whether Peterson will be executed or face life in prison. (source: Associated Press) ILLINOIS: Cops Taking 5th in Chicago Police Lawsuit More than 2 dozen current and former police officials and homicide detectives have taken the 5th Amendment when questioned in a civil lawsuit alleging that Chicago police used torture when interrogating suspects, attorneys said Tuesday. Attorneys for 2 former death row inmates told U.S. Magistrate Judge Geraldine Soat Brown that the former detectives and officials have refused to testify because they are covering up the use of torture by police. "Twenty-eight former deputy superintendents and other officials in the police department have all taken the 5th Amendment," attorney G. Flint Taylor told the court. The disclosure came at a hearing in a suit filed by former inmate Madison Hobley. He claims he was tortured into confessing to a murder he didn't commit and is seeking millions of dollars in damages. The judge agreed with attorneys for the former officers who sought to bar lawyers for Hobley and another former inmate, Aaron Patterson, from making public transcripts and videotapes of depositions at which the detectives and officials took the 5th Amendment. She issued a ruling barring such disclosures. Hobley attorney Kurt H. Feuer argued that reporters should be able to have the transcripts and videotapes: "This is something that the public has a right to know." James Sotos, who represents a number of former officers who are defendants or potential witnesses, said the primary aim of providing the tapes to the media was to embarrass the officers involved. Among his clients is Jon Burge, the former commander of a homicide unit where much of the torture allegedly took place. The 2 former prisoners say Burge and detectives under him tortured them into confessing to murders they didn't commit. Both men were among four death row inmates pardoned by former Gov. George Ryan just before he left office. Attorneys for Burge, who was fired by the police department following an internal investigation, have denied he was ever involved in torture. But inmates say they were beaten, dunked in water and questioned with a plastic typewriter cover over their heads, among other things. Taylor says electric shock devices may have been used. The controversy has dragged on for years. A special prosecutor is currently conducting an investigation with the potential of bringing criminal charges. Sotos said in a telephone interview that his clients "would jump at the chance to testify" if not for the special prosecutor's investigation. It's possible, he said, that anyone who testifies they may be charged by the special prosecutor with taking part in a cover-up conspiracy. "They would love to testify," he said. "It's killing them that they can't." (source: Associated Press) IDAHO: Prosecutor drops death penalty option in McMillan slaying In Moscow, prosecutors will not seek the death penalty against the 3 men charged in the September slaying of University of Idaho football player Eric McMillan. Latah County Prosecutor William Thompson said the case lacks the kind of aggravating circumstances required by state law to justify a death sentence on conviction of 1st-degree murder. Brothers Matthew R. Wells II, 27, and James M. Wells, 25, both of Seattle, and their nephew, Thomas J. Riggins, 23, of Kent, Wash., would face life in prison without possibility of parole if convicted in the shooting death of the 19-year-old starting cornerback for the Vandal football team. All three were arrested in Washington. Matthew Wells has waived extradition and is being held in the Latah County Jail. His arraignment on the 1st-degree murder charge is set for Nov. 29. His brother remained in the Whitman County Jail awaiting extradition on a first-degree murder charge, and his nephew was jailed in Kent and also awaiting extradition to Idaho on a charge of being a principal to murder. The grand jury that indicted the 3 continues to sit, and Thompson said others could still be charged. McMillan died after being shot in the chest, apparently just inside his apartment after answering a knock on the door, according to investigators, who said he managed to seek help from a neighbor. McMillan died at the local hospital about 11 hours later. Authorities have offered no motive in the case but have confirmed that they are investigating reports that McMillan might have been involved, possibly as a peacemaker, in an altercation at a downtown Moscow nightclub the night before he was shot. The indictment against Riggins alleges that he solicited his 2 uncles to come to Moscow to shoot McMillan. (source: Associated Press)
